Opinion
No. 00-0092-BH-S
November 17, 2000
William Mitchell, P. 0. Box 900, Portage, WI 53901
Edward S. Sledge III, Esq., McDowell Knight Roedder Sledge, L.L.C., P.O. Box 350, Mobile, AL 36601
Archibald T. Reeves IV, Esq., McDowell Knight Roedder Sledge, L.L.C., P.O. Box 350, Mobile, AL 36601
Frederick George Helmsing Jr., Esq., McDowell Knight Roedder Sledge, L.L.C., P.O. Box 350, Mobile, AL 36601
Stephen E. Scheve, Esq., Shook, Hardy Bacon, Chase Tower, Suite 1600, 600 Travis, Houston, TX 77002-2911
Steven R. Selsberg, Esq., Shook, Hardy Bacon, Chase Tower, Suite 1600, 600 Travis, Houston, TX 77002-2911
Vuk S. Vujasinovic, Esq., Shook, Hardy Bacon, Chase Tower, Suite 1600, 600 Travis, Houston, TX 77002-2911
Samuel H. Franklin, Esq., Lightfoot, Franklin White, 400 North 20th Street, Birmingham, AL 35203
William H. Brooks, Esq., Lightfoot, Franklin White, 400 North 20th Street, Birmingham, AL 35203
Peter S. Fruin, Esq., Maynard, Cooper Gale, 201 Monroe St., Ste. 1940, Montgomery, AL 36104
Aaron H. Marks, Esq., Kasowitz, Benson, Torres Friedman, LLP, 1301 Avenue of the Americas, New York, N.Y. 10019
Bruce F. Rogers, Esq., Bainbridge, Mims, Rogers Smith, LLP, P. 0. Box 530886, Birmingham, AL 35253
Charles K. Hamilton, Esq., Bainbridge, Mims, Rogers Smith, LLP, P. O. Box 530886, Birmingham, AL 35253
JUDGMENT
It is ORDERED, ADJUDGED, and DECREED that this action be and is hereby DISMISSED without prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i). No costs are to be taxed.
ORDER
After due and proper consideration of all portions of this file deemed relevant to the issue raised, and there having been no objections filed, the Report and Recommendation of the Magistrate Judge made under 28 U.S.C. § 636 (b)(1)(A) is ADOPTED as the opinion of this Court. It is ORDERED that this action be and is hereby DISMISSED without prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).
REPORT AND RECOMMENDATION
Plaintiff, a federal prison inmate proceeding pro se, filed this action in the Circuit Court for Escambia County, Alabama. The state court granted Plaintiffs' Affidavit of Substantial Hardship, which permitted Plaintiff to proceed without prepaying the state court filing fee (Doc. 1). Defendants Philip Morris Incorporated ("Philip Morris"), R. J. Reynolds Tobacco Company ("Reynolds"), Brown Williamson Tobacco Corporation ("Brown Williamson"), Lorillard Tobacco Company ("Lorillard"), and Liggett Group Incorporated ("Liggett") filed a Notice of Removal (Doc. 1), removing this action to this Court. Defendants assert that this Court has jurisdiction over this action based on diversity of citizenship jurisdiction, 28 U.S.C. § 1332. No motion for remand was filed.
Lorillard has never been served in this action.
This action has been referred to the undersigned for appropriate action pursuant to 28 U.S.C. § 636 (b)(1)(A) and Local Rule 72.2(c)(1). It is recommended that this action be dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and that Plaintiffs' Motion for Default Judgment against Defendant Liggett (Docs. 18 19) be denied.
I. Procedural History.
Plaintiff alleges in the complaint (Doc. 1) that he began using tobacco products in 1987 or 1988 when he was a long-haul trucker, that he is addicted to Defendants' tobacco products, and that he is unable to quit smoking. Plaintiff maintains that he was induced to begin smoking by Defendants' magazine advertisements and that he was not warned about the addictive nature of Defendants' products or about the health risks associated with smoking, particularly the risk of developing cancer. Plaintiff complains that he has shortness of breath and headaches from Defendants' tobacco products, and that he has a fear of dying of cancer in the near future, which causes him to have nightmares of dying slowly of stomach cancer.
Plaintiff alleges that his complaint is based on Alabama statutory and common law. After providing a lengthy description of the factual basis of his claims, Plaintiff identifies his claims as deceptive advertising/fraudulent representation, intentional misrepresentation, negligent misrepresentation, strict responsibility for misrepresentation, and undertaking of and failure to perform a special duty. Plaintiff claims that he is suing Defendants for "his pain and suffering of emotional distress of his developed fear of dying of cancer or contracting cancer in the future. . . . [and] because he is unable to stop using defendants products, for which he has serious emotional distress, in the form of nightmares and dreams, but aren't limited to these nightmares and dreams of dying of cancer in the future [sic]." Plaintiff seeks $500,000 in actual damages from each Defendant for his nicotime addiction; $250,000 in damages from each Defendant; $10,000,000 in actual and general damages from all Defendants for his pain, suffering, and emotional distress; and $1,000,000 in punitive damages from each Defendant for his mental stress and fear.
Upon review of this action, it appeared to the undersigned that 42 U.S.C. § 1997e(e) was applicable to this action (Doc. 20). Section 1997e(e) provides that "[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The parties were ordered to show cause why this section was not applicable to this action (Doc. 20). Liggett filed a Motion to Dismiss (Docs. 22 32), Philip Morris, Reynolds, and Brown Williamson filed a joint response (Doc. 29) and a joint Motion for Judgment on the Pleadings (Docs. 33 34), and Plaintiff filed responses (Docs. 25 30).
Plaintiff has filed a Motion to Dismiss Defendants Reynolds and Lorillard (Doc. 31) requesting the right to file against these Defendants in the future, and then another Motion to Dismiss all Defendants except for Defendants Brown Williamson and Liggett (Doc. 36), requesting again the right to re-file against the dismissed Defendants. Defendants Philip Morris and Reynolds responded to Plaintiffs' Motion to Dismiss (Doc. 41), consenting "to the dismissal of all Plaintiffs' claims against Defendants upon such terms and conditions as the Court deems proper."
Plaintiff also filed Motion for Default Judgment against Defendant Ligggett (Docs. 18 19) for its failure to plead or otherwise defend against Plaintiffs' claims together with a brief in support (Doc. 39).
II. Discussion.
A. Jurisdiction.
The Court's first inquiry is whether it has jurisdiction. Taylor v. Appleton, 30 F.3d 1365, 1366 (11th Cir. 1994), Defendants assert that this Court has diversity of citizenship jurisdiction. The requirements of diversity of citizenship jurisdiction dictate that "the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between — citizens of different states[.]" 28 U.S.C. § 1332 (a). Defendants identify in their Notice of Removal (Doc. 1) each Defendant's state of incorporation and each state where a Defendant's principal office and place of business is located. Defendants further mention that they believe that Plaintiff is either a citizen of Wisconsin or Alabama. None of the states identified by Defendants as a state of incorporation or a state where a principal office and place of business is located were Alabama or Wisconsin.
Plaintiff alleges in his complaint that he began using Defendants' products in Alabama, and the complaint's signature line indicates that Plaintiff is a federal inmate (Doc. 1). Plaintiffs' address on the state court docket sheets indicates that at the time of filing on December 27, 1999, Plaintiffs' address was P. O. Box 900, Portage, Wisconsin (Doc. 1). In a letter received December 30, 1999, by the clerk of the Escambia County Circuit Court, Plaintiff informed the clerk that he initially filed his complaint in a federal district court in Wisconsin, but was told by the judge to file his complaint where his domicile is, which is Flomaton, Escambia County, Alabama, not in Wisconsin where he is a prisoner (Doc. 1).
Plaintiff also filed this complaint in the United States District Court for the Southern District of Florida, Miami Division, on December 16, 1999 (Doc. 29, at 4 n. 2), eleven days before he filed this action in the Circuit Court of Escambia County on December 27, 1999 (Doc. 1). The Florida action was dismissed on March 13, 2000 (Doc. 17, Plaintiffs' Report of Parties' Planning Meeting, at 8). Defendants contend that Plaintiff is forum shopping (Doc. 29, at 4 n. 2). Plaintiff explains that he filed the Florida action based on the faulty advice of an inmate paralegal and that Plaintiff dismissed the action as soon as he knew that he should have filed the action in Alabama (Doc. 30, Plaintiffs' Response to Show Cause Order, at 7). Plaintiff further explains that he filed the Florida action because when he is paroled he will be returned to the state of his arrest, which is Florida, and he later learned that he could then be transferred to Alabama, his residence, if a transfer is granted (Doc. 17, at 8).
A prisoner's place of incarceration does not establish citizenship.Polakoff v. Henderson, 370 F. Supp. 690, 693 (N.D. Ga), aff'd, 488 F.2d 977 (5th Cir. 1974). A prisoner's citizenship is determined by his domicile prior to incarceration. Id.; Denlinger v. Brennan, 87 F.3d 214, 216 (7th Cir. 1996) ("A forcible change in a person's state of residence does not alter his domicile; hence the domicile of [a] prisoner before he was imprisoned is presumed to remain his domicile while he is in prison."). Plaintiff is, therefore, a citizen of Alabama because he maintains that prior to his incarceration his domicile was in Alabama.See Villarreal v. Brown Express, Inc., 529 F.2d 1219, 1221 (5th Cir. 1976) ("[T]he federal courts usually do not limit their inquiry to the face of plaintiffs' complaint, but rather consider the facts disclosed on the record as a whole in determining the propriety of removal."); see also Davis v. Cluet, Peabody Co., 667 F.2d 1371, 1373 n. 6 (11th Cir. 1982). Thus, Defendants and Plaintiff are diverse parties.
The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted the decisions of the former Fifth Circuit rendered prior to October 1, 1981.
Plaintiff requests damages in excess of $75,000, and also asserts that he will "continue to suffer substantial injuries." The amount in controversy is satisfied unless it appears "to a legal certainty that the claim is really for less than the jurisdictional amount." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 590, 82 L.Ed.2d 845 (1938). The time frame for determining whether the amount in controversy is satisfied is at the time of removal. Poore v. American-Amicable Life Ins. Co., 218 F.3d 1287, 1290-91 (11th Cir. 2000). Events occurring subsequent to removal that reduce the recoverable damages below the amount in controversy requirement do not divest the district court of jurisdiction. Id. at 1291. Nor does the existence of a valid defense apparent on the face of the complaint divest the court of jurisdiction. Red Cab, 303 U.S. at 289, 58 S.Ct. at 590. The undersigned cannot say to a legal certainty that Plaintiffs' claims are for less than the jurisdictional amount and, therefore, concludes that the amount in controversy exceeds the jurisdictional threshold of $75,000. Accordingly, the undersigned finds that the requirements of diversity of citizenship jurisdiction under 28 U.S.C. § 1332 are satisfied.
B. Prisoner In Forma Pauperis Actions.
Having determined that this Court has jurisdiction over Plaintiffs' action, Plaintiffs' action is due to be screened under 28 U.S.C. § 1915, because Plaintiff was a prisoner when he filed this action and was allowed to proceed without prepaying the regular filing fee. Section 1915(e)(2)(B) provides: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal — is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." Under 28 U.S.C. § 1915 (e)(2)(B)(i), a claim may be dismissed as "frivolous where it lacks an arguable basis in law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A claim is frivolous as a matter of law where, inter alia, the defendants are immune from suit, id. at 327, 109 S.Ct. at 1833, the claim seeks to enforce a right which clearly does not exist, Id., or there is an affirmative defense that would defeat the claim, such as the statute of limitations, Clark v. Georgia Pardons Paroles Bd., 915 F.2d 636, 640 n. 2 (11th Cir. 1990). Judges are accorded "not only the authority to dismiss [as frivolous] a claim based on indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. Moreover, a complaint may be dismissed under 28 U.S.C. § 1915 (e)(2)(B)(ii) for failure to state a claim upon which relief may be granted "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."Hishon v. King Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)).
Even though Plaintiffs' docket fees and services fees were waived in the state court when he commenced his action, these fees would be taxed as costs at the end of the case if Plaintiffs' action had remained in state court (Doc. 1). This arrangement is not unlike the procedure for an inmate seeking in forma pauperis status in federal court. An indigent inmate who a commences a federal civil action and seeks leave to proceed in forma pauperis is not required to pay the statutory $150 filing fee at the time of filing. 28 U.S.C. § 1915 (b)(1) (2). Instead, the court determines if the inmate can pay the statutory partial filing fee and orders him to pay it, or decides that he is not required to pay the statutory partial filing fee and allows him to proceed without paying a partial payment. 28 U.S.C. § 1915 (b)(1) (4). Nevertheless, an order is entered for the institution to recover the $150 filing fee, or the remainder, from the inmate's institutional account in increments until the filing fee is paid. 28 U.S.C. § 1915 (b)(2) (3).
The predecessor to this section was 28 U.S.C. § 1915 (d).
C. Applicability of 42 U.S.C. § 1997e(e) .
Congress enacted the Prison Litigation Reform Act of 1996 ("PLRA") in an attempt to curb the flood of prisoner actions in federal court. Harris v. Gamer, 216 F.3d 970, 971 (11th Cir. 2000). Included in the PLRA was 42 U.S.C. § 1997e(e), which provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." This section only bars a damages recovery for a mental or emotional injury where there is no connected physical injury. Harris v. Garner, 190 F.3d 1279, 1287-88 (11th Cir.), modified in part by Harris v. Garner, 216 F.3d 970 (11th Cir. 2000). A physical injury that is associated with a mental or emotional injury must be more than de minimis in order to avoid the application of § 1997e(e). Harris, 190 F.3d at 1286 ("We therefore join the Fifth Circuit in fusing the physical injury analysis under section 1997e(e) with the framework set out by the Supreme Court in Hudson for analyzing claims brought under the Eighth Amendment for cruel and unusual punishment, and hold that in order to satisfy section 1997e(e)the physical injury must be more than de minimis, but need not be significant."). Otherwise, the essential purpose and vitality of Congress' scheme would be sapped. Id. at 1287.
Plaintiffs' complaint contains at least 88 typed pages. It appears that Plaintiff has obtained a complaint prepared by a lawyer and either copied it or retyped it. Plaintiff has added pages to the complaint in an attempt to tailor the complaint to his situation. Defendants have suggested that the complaint "was originally drafted by lawyers retained by the State of Wisconsin in its case against the tobacco industry" due to references to the State of Wisconsin, which the Court finds are throughout the complaint, but which Plaintiff struck through, for the most part (Doc. 34, Certain Defendants' Memorandum in Support of Motion for Judgment on the Pleadings, at 3-4 n. 2). Plaintiff gives credence to this suggestion of Defendants with his Request for Production of Documents (Doc. 15) which is directed to the Attorney General's Office of the State of Wisconsin and specifically to Mr. Doyle who is the custodian of the records that were used to compile an amended complaint for the State of Wisconsin.
In the present complaint's ad damnum clause (Doc. 1), Plaintiff sues Defendants "for his pain and suffering of emotional distress" related to his fear of contracting and dying from cancer in the future, his nightmares that he has of dying from cancer in the future, and nicotine addiction. However, contained on a handwritten page behind the first typed page of the complaint (Doc. 1) is Plaintiffs' statement that within the last year he has attempted to stop using the tobacco products "due to his shortness of breath, headaches, and his fear of dying of cancer in the near future . . . [and] nightmares . . . of dying slowly of stomach cancer."
After filing the complaint, Plaintiff filed other documents where he refers to being unable to stop smoking and to having developed a fear of dying of cancer and nightmares of dying of cancer and that he seeks recovery for the "physical and mental pain and suffering caused by defendants [sic] products" (Doc. 17, at 3-4; see Doc. 18, Plaintiffs' Motion for Default Judgment Against Liggett). Additionally, in Plaintiffs' Motion for Default Judgment against Liggett, he seeks to recover damages for his "mental stress and fear" and his "pain, suffering, and emotional distress" (Doc. 18). However, once the Court ordered the parties to show cause why 42 U.S.C. § 1997e(e) did not apply to this action and set out the text of the statute (Doc. 20), Plaintiff then reasserted allegations for shortness of breath and headaches and contended that his nicotine addiction, which he became aware of last year when he tried to stop smoking, is a physical injury (Doc. 30, Plaintiffs' Second Response to Show Cause Order, at 4-5).
1. Federal Civil Action.
In Plaintiffs' first response to the Court's show cause order (Doc. 25, at 2), Plaintiff maintains that his state law tort action is not a "federal civil action" and, therefore, § 1997e(e) does not apply. Plaintiff contends that he did not request removal to federal court, that this action is a diversity action to which state law is to be applied, and that this section only applies to federal civil actions concerning prison conditions and not to private tort actions against non-government defendants. In Plaintiffs' second response to the Court's show cause order, he asserts that § 1997e(e) should only be applied to prison condition cases when § 1997e(e) is read with § 1997e(a), which requires: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." (Doc. 30, at 8-9)
When Congress has used terms that are clear, the courts will not look to legislative history to undermine the plain meaning of the statute. Harris, 216 F.3d at 976. The statute's phrase "[n]o Federal civil action" is clear and unambiguous. In. at 985 ("`[N]o' means no. The clear and broad statutory language does not permit us to except any type of claims, including constitutional claims."); Cassidy v. Indiana Dept. of Corrections, 199 F.3d 374, 376 (7th Cir. 2000) (deciding that Congress clearly stated that "No Federal civil action" shall be brought and that no exceptions would be carved out that would make § 1997e(e) apply to only non-constitutional claims). Section 1997e(e) does not specify which actions are federal actions, but simply states that "no federal civil action" shall be brought. Thus, it appears to the undersigned that by this broad language any inmate-commenced civil action on a federal court's docket is a "federal civil action."
Even though the language of the statute is clear, when the "legislative history supports and complements that plain meaning of statutory language" sometimes it is beneficial to review that history. Harris, 216 F.3d at 977. Congress was concerned with the large number of frivolous actions filed by prisoners who had considerable free time and no financial disincentives when it enacted § 1997e(e). Id. at 977. Congress viewed "`frivolous lawsuits filed by prisoners [as tying] up the courts, wast[ing] valuable judicial and legal resources, and affect[ing] the quality of justice enjoyed by the law-abiding population.'" Id. at 982 (quoting the statement of Sen. Dole in the Congressional Record). The goal of Congress was to reduce the number of inmate lawsuits. Id. at 978 987. By enacting § 1997e(e), Congress was concerned with only limiting certain inmate lawsuits, i.e., damages actions for mental and emotional suffering with no associated physical injury, and it did not attempt to distinguish the type of action that the inmate had commenced in any other way. Because Congress was concerned with protecting the resources of the federal courts, if the Court were to exclude a removed state action filed by an inmate from the purview of § 1997e(e), the effect that § 1997e(e) was designed to have on inmate actions would be undermined. Moreover, it makes no difference how an inmate commenced action arrived in this Court. Once the action is in this Court and Court's resources are being expended, § 1997e(e) is due to be applied in accordance with the plain and clear language of the statute and with Congress's intent.
Congress was only concerned with actions "`brought by a prisoner confined' and not those continued by or litigated to judgment by a prisoner confined[,]" or those actions brought by former inmates. Harris, 216 F.3d at 976 980 (citation omitted). "Confined prisoners have little to lose by filing frivolous lawsuits, and that is why Congress made the confinement status of plaintiff at the time a lawsuit is filed the controlling factor." Id. at 978.
The original text of § 1997e(e) "limited recovery in civil actions brought `by an adult convicted of a crime confined in a jail, prison, or other correctional facility.'" Harris, 216 F.3d at 977 n. 5. This text shows that no inmate action was contemplated by Congress to be excluded.
In the response of certain Defendants to the show cause order (Doc. 29, at 3), they argue that "federal civil action" means any civil action pending in federal court and cite Hickey v. St. Martin's Press, Inc., 978 F. Supp. 230, 232 (D. Md. 1997), and In re Great Lakes Dredge Dock Co., 895 F. Supp. 604, 612 (S.D.N.Y. 1995). The undersigned agrees with this statement. Reese v, Akers Motor Lines, 7 F.R.D. 682, 683 (N.D. Ga.) (referring to a removed state court action as a federal civil action), aff'd, Akers Motor Lines v. Newman, 168 F.2d 1012 (5th Cir.),cert. denied, 335 U.S. 858, 69 S.Ct. 131, 93 L.Ed.2d 405 (1948).
Furthermore if Congress had wanted to limit § 1997e(e) only to prisoner conditions of confinement cases, it would have done so with explicit language as it did in § 1997e(a). See, e.g. Id. at 984-84 (finding that no claims are excluded from § 1997e(e), thereby rejecting an inmate's argument that § 1997e(e) does not apply to constitutional claims); Cassidy, 199 F.3d 374 (finding that § 1997e(e) precludes the inmate's claims under the Americans with Disabilities Act and the Rehabilitation Act). Accordingly, the undersigned determines that Plaintiffs' action is not removed from the purview of 42 U.S.C. § 1997e(e).
Because Congress took such an affirmative and comprehensive step by enacting the PLRA, it is evident to the Court that Congress had examined the types of cases brought by inmates and their number, and realized that they ran the gamut. Therefore, Congress imposed no limitation on the type of prisoner case to which § 1997e(e) would apply. See, e.g. Cofield v. Alabama Public Serv. Comm., 936 F.2d 512, 517-18 (11th Cir. 1991) (reviewing a litigious inmate's litigation history which reflected that he sued Coca-Cola for drinking a bottle of Coke filled with ground glass in Birmingham even though at the time he was incarcerated in Bessemer where only Pepsi products were sold, tried to extort money from Four Seasons restaurant in New York for food poisoning even though he was in prison when the poisoning allegedly occurred, and sued local papers for traumatizing his wife and daughter by publishing his obituary even though he actually had no wife or daughter and it appeared that he had placed the obituary in order to bring a lawsuit.).
2. Physical Injury Element.
The next issue to be resolved is whether Plaintiff alleges a physical injury that is more than de minimis which is connected to his claims for emotional and mental distress. Plaintiffs' complaint appears to be chiefly concerned with his claims for emotional and mental distress caused by his fear of contracting and dying from cancer and by his nightmares. Plaintiff, however, does allege that he has developed headaches and shortness of breath and contends that his nicotine addiction is a physical injury.
Defendants assert that Plaintiffs' situation is similar to the inmate plaintiffs in Zehner v. Trigg, 952 F. Supp. 1318 (S.D. Ind. 1997), aff'd, 133 F.3d 459 (7th Cir. 1997), who were exposed to asbestos while working in the prison kitchen (Doc. 29, Response of Certain Defendants to Show Cause Order, at 2). The district court described the plaintiffs' injuries as "`untold future physical injury and present mental pain and suffering,' [in addition to] `mental anguish and the fear of developing cancer, asbestosis or related asbestos exposure diseases and conditions.'" 952 F. Supp at 1321. The district court concluded that "mere exposure to asbestos or other hazardous substances is not itself a physical injury." Id. at 1322-23 (citing cases). The district court held that there could be no recovery for mental or emotional injuries because there was no physical injury. Id. at 1323.
Plaintiff attempts to distinguish Zehner by stating that the exposure in Zehner was to a prison condition (Doc. 30, at 2). Section 1997e(e), however, contains no limitation that the injury must be the result of a prison condition. Therefore, the undersigned concludes that Zehner is persuasive and that exposure to Defendants' tobacco products is not a physical injury.
Furthermore, Plaintiffs' conclusory allegations of headaches, shortness of breath, and nicotine addiction do not present a physical injury that is greater than de minimis. Courts have determined that headaches are not a sufficient physical injury under § 1997e(e) to allow for the recovery of an emotional or mental injury. Cain v. Commonwealth of Va., 982 F. Supp. 1132, 1135 n. 3 (E.D. Va. 1997); Pinkston-Bey v. DeTella, No. 96 C 4823, 1997 WL 158343, at *3 (N.D. Ill. Mar. 31, 1997). Difficulty in breathing so as to require the use of an inhaler has been found not to satisfy the physical injury component of § 1997e(e).Sarro v. Essex County Correctional Facility, 84 F. Supp.2d 175, 177 (D. Mass. 2000). Nicotine addiction likewise is not an injury that satisfies the physical injury requirement of § 1997e(e) because it is not greater than de minimis. CF. Siglar v. Hightower, 112 F.3d 191, 194 (5th Cir. 1997) (finding a sore, bruised ear lasting for three days not a sufficient physical injury under § 1997e(e) to support recovery for emotional or mental suffering); McGrath v. Johnson, 67 F. Supp.2d 499, 508 (E.D. Pa. 1999) (finding that the inflammation of skin caused by a condition that erupts during periods of mental and emotional pain was not sufficient to satisfy § 1997e(e)'s injury requirement); Zehner, 952 F. Supp. at 1323 (finding that forced exposure to friable asbestos was not a physical injury that would permit recovery for mental or emotional injuries under § 1997e(e)).
Accordingly, the undersigned finds that Plaintiff has not alleged a physical injury that is greater than de minimis. Plaintiff, therefore, has not satisfied the physical injury element of § 1997e(e) and is not allowed to recover on his claims for mental and emotional injuries. As a consequence, Plaintiffs' action is due to be dismissed without prejudice as frivolous as a matter of law. Harris, 216 F.3d at 980 (holding that the dismissal of a claim under § 1997e(e) should be without prejudice so the inmate may re-file upon his release).
D. Plaintiffs' Voluntary Motions to Dismiss.
The Court notes that Plaintiff filed motions to dismiss Defendants Reynolds, Lorillard, and Philip Morris (Docs. 31 36), to which Defendants Philip Morris and Reynolds consented (Doc. 41) upon such terms and conditions that the Court deems just. After a defendant has been served, the dismissal of an adverse party by plaintiff shall be done "upon order of the court and upon such terms and-conditions as the court deems proper." Fed.R.Civ.P. 41(a)(2). If the Court were to grant Plaintiffs' motions to dismiss as to Defendants Reynolds, Lorillard, and Philip Morris, the dismissal as to these Defendants would be without prejudice in light of the recommendation that this action be dismissed without prejudice as frivolous as to Brown Williamson and Liggett. Notwithstanding these motions to dismiss, it is the undersigned's recommendation that this action be dismissed in its entirety as frivolous.
E. Plaintiffs' Motion for Default Judgment.
On March 31, 2000, Plaintiff moved for a default judgment against Defendant Liggett for its failure to file an answer within 30 days to Plaintiffs' complaint filed in state court on December 27, 2000, and served on Defendant Liggett on January 4, 2000 (Docs. 18 19; see also Docs. 38 39). Even though Liggett joined in the Notice of Removal filed on February 1, 2000 (Doc. 1) and filed its Notice of Appearance on February 11, 2000 (Doc. 8), Disclosure Statement Pursuant to Local Rule 3.4 on March 14, 2000 (Doc. 12), and Motion to Dismiss on April 21, 2000 (Doc. 22), it did not file an answer. However, due to the undersigned's finding that 42 U.S.C. § 1997e(e) precludes Plaintiff from any recovery on this action in federal court while he is an inmate, Plaintiffs' Motion for a Default Judgment (Doc. 18) is due to be denied.
III. Conclusion.
Based upon the foregoing reasons, it is recommended that this action be dismissed without prejudice as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i) and that Plaintiffs' Motion for Default Judgment against Defendant Liggett (Docs. 18 19) be denied.